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work. He has been removed just when a scheme is in progress which, if successful, will very speedily render his book, to a large extent, obsolete.

AMONG THE CHANGES which have been introduced in the Railway and Canal Traffic Bill in the House of Lords, there is one the indirect importance of which has not, we believe, been generally appreciated. As the Bill now stands, the commission is to consist of two permanent appointed commissioners and three ex officio commissioners. Of the three ex officio members one is to be appointed for England, one for Scotland, and one for Ireland; and the ex officio commissioner for each part of the United Kingdom is to be one of the judges of the superior court of that part. The ex officio commissioner for England is to be such judge of a superior court as the Lord Chancellor "may from time to time by writing under his hand assign, and such assignment shall be for a period of not less than five years," and regulations are to be made as to the arrangements for securing the attendance of the ex officio commissioner, as to the times and place of sitting in each case, and otherwise for the convenient and speedy hearing thereof. Now comes the alteration to which we allude. Clause 6 provides that: "It shall be lawful for her Majesty, having regard to the business required by this Act to be transacted by the ex officio commissioners, and to the proper transaction of the business of the superior court in England, to appoint an additional judge of such court, and from time to time to fill any vacancy in such judgeship, and the law relating to the appointment and qualification of the judges of such superior court, to their duties and tenure of office, to their precedence, salary, and pension, and otherwise, shall apply to any judge so appointed under this section, and a judge so appointed under this section shall be attached to such division or branch of the court as her Majesty may direct, subject to such power of transfer as may exist in the case of any other judge of such division or branch."

It will be observed that, although the additional judge of the High Court is to be appointed in consequence of the provision for the ex officio judicial commissioner, it is nowhere provided that the new judge shall be such commissioner. He is to be attached to such division of the court as her Majesty may direct, while the commissioner is to be "such judge of a superior court" as the Lord Chancellor may from time to time assign. The probability seems to be that the new judge will be attached to the Chancery

Division.

days occur at a period when the offices of the court are closed, as where an appellant received a case on Good Friday and transmitted it on the following Wednesday (Mayer v. Harding, 2 Q. B. 410).

THE LORD CHIEF JUSTICE was engaged on Wednesday last in the somewhat unusual duty of charging the Grand Jury for Middlesex on an indictment against a local authority for polluting the Thames with sewage. It is stated that this is the first indictment which has been presented to this Grand Jury since the Jamaica prosecution, which caused the memorable controversy between Lord Chief Justice COCKBURN and the present Lord BLACKBURN. Formerly the Middlesex Grand Jury was summoned once in every term, but the Grand Juries, Middlesex, Act, 1872 (35 & 36 Vict. c. 52), s. 1, relieved the county jurors by providing that the grand jury should not be summoned in any term unless before the fourth day thereof the Master of the Crown Office should have received notice of some business intended to be brought before them. The duty of charging the Middlesex Grand Jury was formerly discharged by the senior puisne judge of the Court of Queen's Bench, who received an additional payment of £10 per term for so doing. It may be remembered that this extra payment was abolished by section 29 of the Judicature Act, 1875 (38 & 39 Vict. c. 77) subject to the vested interests of Mr. Justice BLACKBURN, who was the senior puisne judge of the court when the Act came into operation.

THE IRREPRESSIBLE suitor in person has come to the front again this week; a plaintiff who conducted his own case before Mr. Justice CHITTY Occupying the time of the court for the greater part of three days. The inconvenience usually experienced in these advocacy exhibited was in this case aggravated by the powerful cases by reason of the ignorance of the rules of evidence and of eloquence of the plaintiff. His desire to make a speech on every occasion during the course of giving his evidence and of his crossexamination by the defendant's counsel, as well as on the crossexamination of the principal defendant, and his indignation, expressed in loud tones, when any irrelevant question or ill-timed speech was objected to, many times brought down upon him a rebuke from the judge, only to be followed by further indignant speeches from the plaintiff. After this exhibition can it be said that a suitor in person ought to be treated with leniency, or to be allowed any greater a judge has in his hands the power to put a stop to any act tending to disturb the due administration of justice or to waste the public time, but he naturally hesitates to put it in force and to have arrived when the judges should agree to some course of action make a martyr of the suitor in person. The time would seem to which would have the effect of putting a stop to, or, at least, of mitigating, the evils here pointed out.

THE ATTENTION of practitioners in courts of summary jurisdic-licence than a barrister who is acting as an advocate? No doubt tion should be called to the case of South Staffordshire Waterworks Co. v. Stone (Weekly Notes, 1887, p. 130), and the strict construction there put upon one of the Summary Jurisdiction Rules of 1886. It is enacted by section 33 of the Summary Jurisdiction Act, 1879, that any person desiring to question a conviction of a court of summary jurisdiction may apply for a special case, and that "the application shall be made and the case stated within such time and in such manner as may be from time to time directed" by rules under the Act. Rule 18 of the Rules of 1886, repeating without alteration rule 17 of the Rules of 1880, directs that an application to state a special case shall be made in writing, and a copy left with the clerk of the court, and may be made at any time within seven clear days from the date of the proceeding to be questioned." In the South Staffordshire case an oral application to state a case was made to justices while sitting, and was granted by them in court, but no copy of any application was left with the clerk, though a "notice of appeal was afterwards served upon him within the seven days. The case was stated by the justices; but the court (Lord COLERIDGE, C.J., and DENMAN, J.) declined to hear it, on the ground that they had no jurisdiction. The case seems a hard one, but we think the decision is in accordance both with principle and authority. The rule seems to be that, where a statute confers a privilege or right, "the regulations, forms, or conditions which it prescribes for its acquisition are imperative, in the sense that non-observance of them is fatal," (Maxwell on Statutes, 2nd ed., p. 453), and there would be no difference between a statute and a rule in pursuance of a statute. It has been held, too, under 20 & 21 Vict. c. 43, which first gave the power to appeal by case, that the transmission of the case within three days to a superior court, which was required by that Act, was a condition precedent to the exercise of the jurisdiction of the court, and could not be waived (Morgan v. Edwards, 29 L. J. M. C. 108), the only exception being for the case where the three

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THE BALANCE SHEET of the Paymaster-General, on behalf of the Supreme Court of Judicature, during the year ending the 28th of February, 1886, has recently been issued. It is a remarkable fact that the value of the cash and securities in the hands of the paymaster belonging to suitors, which, up to the end of February, 1884, had for many years been on the increase, has, on the last two returns, shewn a considerable decrease. On the 1st of March, 1884, the property (leaving out some miscellaneous items and securities expresed, in foreign currency) in the hands of the paymaster, consisted of £4,429,079 cash and £73,931,247 nominal value of securities; whereas on the 1st of March, 1886, it consisted of £3,931,054 cash and £71,946,527 in securities, shewing a decrease over the whole period of £438,025 in cash and £1,984,720 in securities. In the report of the Auditor-General, attention is called to the increase of suitors' funds, being £12,056,884 since the 1st of October, 1871, when the Audit Office undertook its present duties with regard to those funds, but no mention is made of the falling off of the last two years. During the last fifteen years the number of accounts to which these funds stand has increased from 29,960 to 37,021, and it further appears from the Judicial Statistics that during the same period the annual number of cheques drawn in the Paymaster's office increased from 51,623 to 61,464.

RECTIFICATION OF DESCRIPTION UNDER THE
LAND TRANSFER BILL.

LAST week we called attention to an arguable point that will pro-
bably be raised sooner or later on clause 19 of the Land Transfer
Bill, relating to the rectification of the "description" of registered
estates where adverse possession has been proved against the regis-
tered owner. Another curious enquiry is also suggested by the
proposed enactment.

Simply those who enter into dealings with land in reliance on a paper title, without taking the trouble to go and look at the subject-matter of their bargain, or to make obvious inquiries suggested by patent facts.

Which of these two rival classes of claimants is the more entitled to protection?

WILLS OF MARRIED WOMEN.

Under the Act of 1875 (section 83 (5)) the registered description is "not conclusive as to the boundaries or extent of the land." Ir must, we think, have occurred to many that the law, as estabHow far in, then, does the force of section 21 of that Act, relating lished by the House of Lords in Willock v. Noble (23 W. R. 809, to adverse possession, extend?. This will probably depend upon 7 H. L. 580), which disables a married woman from making circumstances, giving much opportunity for discussion of delicate a will that may be effectual to pass property to which her title points in each particular case. It would seem that as long as only arises under her husband's will, is unsatisfactory. We are boundaries are not "confirmed" (as under the Bill proposed) it not presuming to find fault with the decision, which, if we may be will always be a more or less open question of what land a registered allowed to say so, seems quite sound, but with the law itself. proprietor has been registered as proprietor. Thence, by an easy The Married Women's Property Act, 1882, has made no alteration step, it appears that it will also be an open question what land can of the law in this respect (In re Price, 28 Ch. D. 709). not be acquired by adverse possession. Further, whatever answer It may be well to give a moment's consideration to what is the law be given to this question, another point may be taken on the appli- as regards the wills of married women. A married woman might, cation of clause 19 of the Bill-namely, this: had the expressions before the Wills Act (1 Vict. c. 26), and can still, make a will used both in clause 19 of the Bill and section 83 (5) of the Act (1) disposing of her separate estate or its savings, or (2) in execubeen identical, it would have been clear that clause 19 was only to tion of a power, or (3), if an executrix, in order to appoint an apply where boundaries had been confirmed; but they are not executor for continuing the representation to the original testator, identical. The Act provides that the registered description shall or (4), with her husband's consent, disposing of property not not be conclusive as to the "boundaries or extent" of the land-reduced by him into possession during the coverture to which he meaning, probably, that if the centre of a hedge is registered as the would, as husband, have acquired a right on his wife's death, boundary, yet for all that the boundary may remain where it was, subject, however, to the obligation of taking out administration: four feet away from it, and that a registered disposition of 4,000 see judgments of Lords Selborne and Cairns in Noble v. Willock, square yards may, in imaginable cases, really only affect the trans- Willock v. Noble (21 W. R. 711, 8 Ch. 778, 23 W. R. 809, fer of 2,000. (Vendors and purchasers of registered estates are 7 H. L. 580). We should mention, however, that in the probably not generally aware of these points.) But clause 19 of books are found two other cases-that of the wife of a man the Bill permits rectification of the description of the land where- banished for life by Act of Parliament (Countess of Portland v. ever it is shewn that the "boundaries or parcels " are not in Prodgers, 2 Vern. 109), and (when the law authorized sentences accordance with possession, &c. This raises the question what is of transportation) that of the wife of a man sentenced to transpora parcel? If it had been intended that the clause should apply to tation for life and transported (Re Martin, 2 Rob. 405.) A Queen the whole of a registered estate, of course the words boundaries and Consort is expressly enabled by statute (39 & 40 Geo. 3, c. 88, s. parcels would not have been used. How many parcels, then, and 9) to make a will of real and personal estate. It seems clear that how big, can be abstracted from a registered title as merely in the last only of the four first-mentioned cases the will ceases "parcels," and at what point is the substance of the estate to be to be effectual by the death of the husband during the wife's held to be affected by the lopping of its outlying dependencies? lifetime. In the case of the exercise of a power, the power is, of In this respect it seems that clause 19 goes somewhat further than course, assumed not to be in terms exercisable only in case the the section 83 (5), so as to bring again under the operation of the husband is the survivor. ordinary law as to adverse possession certain portions (though quare what portions) of a registered estate which would have been safe under the Act of 1875, even without having its boundaries confirmed under the Bill.

But whatever the court may ultimately hold that the clause does mean, it is very clear in certain other cases what the court will decide that it does not mean. Whatever interpretation may be put upon the words "boundaries," extent," or "parcels," it is clear that they cannot mean the whole of an estate. Whenever, therefore, adverse possession against a registered proprietor is obtained as to the whole of an estate-that is to say, in the very cases where the occupier has the strongest moral claim to the protection of the law, and the registered proprietor has been guilty of the grossest possible carelessness and neglect-the operation of the statute will be to oust the former in favour of the latter. And this, too, not only in the case of a purchaser, but so as to enable the very man, and his successors in title, who have slumbered on their rights for, say, 100 years, to require the in-sonal estate of the testator, or of personal property described in a dustrious and unsuspecting occupier to relinquish his holding at their arbitrary bidding.

Let us take, for instance, the not infrequent case of a tenant for years at a peppercorn rent holding over after the determination of the tenancy; all parties being under the mistaken impression that he is a fee simple owner. He spends money in improvements. He devises it to his widow as her sole provision. On going to be registered, she finds that by no means whatever can she protect herself from ejectment at any moment, at any distance of time. Of course, the insurance fund will not help her in the least. And all this injustice for what? To protect the careless and negligent owner? It has this effect, but this can hardly be the real object. To protect purchasers, mortgagees, and lessees of registered land? Yes, but what sort of purchasers, mortgagees, and lessees?

Let us now see what are the provisions of the Wills Act which have to be regarded for the purposes we have in view in this article. They are sections 1, 3, 8, 24, and 27. Under section 1 the word "will" in the Act extends to "an appointment by will in exercise of a power," and every word importing the masculine gender is to extend to a female. Section 3 empowers every person to dispose of, by will, all real and personal estate which he shall be entitled to at law or in equity at his death, and which, if not so disposed of, would devolve upon the heir of him or his ancestor, or upon his executor or administrator. Section 8 enacts that "no will made by any married woman shall be valid except such a will as might have been made by a married woman before the passing of this Act." By section 24 every will is to be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if executed immediately before the death of the testator, unless a contrary intention appear by the will; and by section 27 a general devise or a bequest of the pergeneral manner, is to include any real or personal estate to which the description extends which the testator may have power to appoint in any manner he may think proper, and is to operate as an execution of the power, unless a contrary intention appear by the will. Section 24 gave to a will, and section 27 to a general devise or bequest, an extended operation. This being so, the question arose whether these enactments applied to the will of a married woman, having regard to section 8 of the same Act; ard in Thomas v. Jones (10 W. R 853, 2 J. & H. 483; on appeal, 11 W. R. 242, 1 D. J. & S. 63) it was decided by Lord Hatherley, then Vice-Chancellor and his decision was affirmed by Lord Westbury, C.-that they did. It was there held that a power of appointment over real estate given to the survivor of three persons was, under the Wills Act, well exercised by a general devise

by a married woman who did not become the survivor until in Noble v. Phelps (2 P. & D. 276, at p. 283, 19 W. R. 1115, at after the execution of her will. The Vice-Chancellor said: p. 1117), "Does the will of a married woman made during "The construction I give to the 8th section is, That it coverture speak and take effect with reference to property disables a married woman from doing anything which before the comprised in it as if it had been executed immediately before her passing of the Act she could not have done by reason of her cover- death?", Mellish, L.J., in answer to it, said: "Now, certainly I ture; it preserves the incapacity of coverture as it stood before the should be far from saying that that would not have been a very Act; but, as regards any incapacity arising from matters independ- reasonable thing to enact if the Legislature had enacted it, beent of coverture, applicable to men and women alike, the statute cause, no doubt, it very often happens that the husband and the was not intended to draw a distinction between married women wife grow old together, they both become ill together, at the and other persons." And, on the appeal, Lord Westbury said:- same time almost, and, possibly, it might be a very convenient "The objection of the appellants is founded on the 8th section thing if a married woman might make a will anticipating the of the statute, and may be thus stated: The statute cannot be time when she should become a widow, and effectual in that applied to render valid any devise contained in the will of a event. After her husband's death she might be in a state pracmarried woman, which would not have been valid before the Act. tically incapable of making a will until she herself died. In my But the will of Margaretta Nicholl, if made before the statute, opinion, the law has not gone to that extent." Before adverting would not have been valid as an appointment of the estate in to Lord Justice Mellish's remarks, we may notice that Lord question. Therefore, say the appellants, the court cannot apply to Penzance's question itself was not, it appears to us, so expressed this will the beneficial principles and rules of construction which as to bring out the real point, as it omits reference to the cessation are introduced by the 24th and 27th sections of the Act, and which of coverture. The question intended, we think, was something are necessary to render the will a valid appointment. In other like this-Does the will of a married woman made during words, the plaintiffs contend that the application to this will of the coverture speak and take effect as if it had been executed im24th section of the statute, thereby giving a subsequent date to the mediately before her death so as to comprise property acquired after will, is to confer a testamentary capacity which would not other- cessation of the coverture? and it is clear that it is to such a wise exist, and that this is forbidden by the 8th section. They question the Lords Justice's remarks are directed. Then, advertinsist that, if, by applying the statute, you make the will of a feme ing to his lordship's remarks, what was said by the Lord Justice covert include that which, but for the statute, it would not, you seems to us to afford a strong ground for an amendment of the law enlarge her capacity, and make her will valid as to property in the direction indicated in his remarks; and when it is borne in of which, without the statute, it would not be a valid disposition. mind that a married woman's will may operate as an execution of It is obvious that the result of this reasoning would exclude all a general power taking effect on her surviving her husband, and, wills of married women from the benefit of the provisions of the as it appears to us, even although the power arises under her Act, wherever by virtue of its enactment such wills would receive husband's will, it is difficult to see why a married woman should a more extended operation. Such could hardly have been the not be made capable of making a will which shall be operative on intention of the Legislature. Personally she acquires no property of which she becomes the owner under her husband's enlarged capacity from the statute, although her testamentary in- will. strument or will, when made, may have the benefit of more liberal rules of interpretation."

It may, perhaps, be right to notice that in Thomas v. Jones the testatrix died married; but it is submitted that this was unimportant, for it seems clear that a general testamentary power, where not limited to take effect only in the event of the husband surviving, may be exercised by a married woman so as to take effect whether she survives her husband or not (see 3 Dav. Prec. (3rd ed.), 186, 187). It seems also clear that a general testamentary power given to a woman while sole may be exercised by her when married (Sug. Pow. (8th ed.), p. 154). Then, it being clear that under sections 24 and 27 of the Wills Act a general disposition in a will made before a general testamentary power is created may operate as an execution of that power, even although the instrument creating the power in terms contemplates a prospective execution (see, among other cases, Boyes v. Cook, 28 W. R. 754, 14 Ch. D. 53, and Airey v. Bower, 12 App. Cas. 263), it seems to follow that a general disposition in the will of a married woman may operate as the execution of a general testamentary power, exercisable irrespective of coverture, which becomes vested in her under the will of her deceased husband. Then, as to separate estate, section 24 of the Wills Act must, according to Thomas v. Jones, apply to separate property in real estate as well as to a power over it.

We may observe that, under the Married Women's Property Act, 1882, it would seem that in the not infrequent case of an investment in the joint names of a husband and wife, if made after 1882, the wife would be capable of disposing by will made during the marriage of her contingent title by survivorship.

Thus far we have considered the extent of a married woman's capacity of disposition by will either under a power or in respect of separate property, and, as we said at the beginning of this article, that capacity is ineffectual to enable a married woman by will to dispose of property to which her title-we are speaking of ownership, not power-arises under her husband's will. We have already expressed the inclination of our opinion that a married woman may exercise prospectively a power arising under her husband's will. If this be so, why should a married woman not be able to exercise a right of disposition arising from ownership that becomes vested in her under her husband's will? Here we may refer to what was said by Mellish, L.J., in Noble v. Willock (suprà); there, referring to this question put by Lord Penzance in his judgment

It appears to us that an amendment of the law for this purpose is made more desirable by the passing of the Married Women's Property Act, 1882, inasmuch as it seems likely that by reason of that Act the number of married women who make their wills will be greatly increased, and it would surely be an advantage that a married woman should not be obliged to make a second will in the event of becoming a widow and acquiring the ownership of property under her husband's will. Moreover, as Parliament has, by the Married Women's Property Act, recognized the capacity of a married woman to manage her property and secured to her the power to do so, it seems well nigh absurd that she should still remain incapable of making a will while under coverture disposing of property which may be in her power of disposition when she becomes a widow. The influence of her husband must surely be less to be apprehended in the case of property which he cannot himself enjoy than in the case of property which he may take under her disposition if he survives. An enactment that a married woman shall be capable of disposing by will of any property which at the time of her death may be subject to her testamentary disposition would seem to meet the object.

CORRESPONDENCE.

SOLICITOR-TRUSTEE COSTS.

[To the Editor of the Solicitors' Journal.] Sir,-You refer to Christopher v. White as settling the point against a partner of a solicitor-trustee being able to charge profit costs where the trustee himself would not be allowed them. I thought there was a case a year or two since in which, on it being shewn that although the trustee was a partner he took no profits from the firm's business and did not do the work himself, and that in that case it was held that the partners might charge in the usual way. London, June 25.

T. P. Y.

[Our meaning, of course, was, that where the solicitor-trustee would participate in the profit costs, his partner could not charge them. If the partnership articles expressly provide that the solicitortrustee shall not participate in the profit costs, or have any benefit for work done for the trust estate (Clack v. Carlon, 7 Jur. N. S. 441). from them, the solicitor-trustee may pay his partner the usual charges We are not aware of any more recent reported authority on the point, but should be glad if our correspondent (whose accuracy we know) could refer us to one.-ED. S. J.]

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July 2, 1887.

THE SOLICITORS' JOURNAL.

CASES OF THE WEEK.

SHEPPARD v. THE SCINDE, PUNJAUB, AND DELHI RAILWAY
CO.-C. A. No. 2, 28th June.

RAILWAY COMPANY-PURCHASE OF UNDERTAKING BY GOVERNMENT-DI-
VISION OF PURCHASE-MONEY AMONG SHAREHOLDERS-SHARES UNEQUALLY
PAID UP.

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In 1871 the defendant executed a deed the effect of which, if his father had consented as protector, would have been to convert the estate tail into an estate in fee simple; but, inasmuch as the father did not consent, only a base fee was created. In 1874 the plaintiff attempted to The defendant mortgaged the to obtain the consent of the latter. purchase the fee simple from the defendant and his father, but was unable valuable consideration, conveyed the property to the plaintiff, and entered property, and, on the 30th of March, 1875, he and his mortgagee, for into the above covenant. The father of the defendant died in 1884, and, the defendant being then in a position to execute a disentailing deed, and This was an appeal against a decision of Kekewich, J. (35 W. R. 516), thus convert the base fee into an estate in fee simple, the plaintiff claimed the question being how, on the purchase of the undertaking of the specific performance of the covenant for further assurance by the execution of a disentailing deed. On behalf of the defendant it was urged that the The covenant for further assurance did not extend to a future interest devolvcompany by the Secretary of State for India, the purchase-money was to be divided among the stock and shareholders of the company. Secretary of State had an option of purchasing the company's under- ing on the vendor, and that the parties knew the state of the title at the taking at a sum equal to the amount of the value of all the shares and time when the deed was executed. Kekewich, J., held (34 Ch. D. 415, THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) agreed in capital stock in the company issued or created for the purposes of the ante, p. 202) that the defendant was bound to execute a disentailing deed. railways and flotilla, calculated according to the mean market value of whether section 47 of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74) such shares or stock during the three years immediately preceding the the view of Kekewich, J., subject to a question which they raised-viz., date of the purchase," and he was also empowered, instead of paying a the jurisdiction of gross sum, to pay an annuity for a fixed term of years. At the time when did not prevent the court from entertaining such an action. That section, the Secretary of State gave notice of his intention to exercise his option it will be remembered, provides that "in cases of dispositions of lands of purchase the capital of the company consisted of £11,010,100 stock and under this Act by tenants in tail thereof courts of equity shall be altogether excluded, either on the behalf of a 14,832 shares of £20, in respect of which only £5 per share had been person claiming for a valuable or meritorious consideration, or not, in called up and paid. The provisions of the Companies Clauses Consolidation Act, 1845, with respect to the making of dividends, were incor- regard to the specific performance of contracts and the supplying of and in regard to the porated in the company's special Acts, the profits being divisible in defects in the execution of the powers of disposition given by this Act to execution of such powers of disposition proportion to the amounts paid up by the shareholders. In March, 1885, tenants in tail, and the supplying under circumstances of the want of the Secretary of State gave notice of his intention to purchase the company's undertaking at the price of £14,009,124 8s. 3d. The question was giving effect in any other manner to any act or deed by a tenant in tail. whether this sum was divisible amongst all the holders of stock and shares which in a court of law would not be an effectual disposition under this in proportion to the respective amounts of capital paid up by them (in Act." This point was reserved for further argument.-COUNSEL, Warmwhich case the holder of £20 stock would receive four times as much as ington, Q.C., and Russell Roberts; Barber, Q.C., and T. Rawlinson. SOLIthe holder of a £20 share on which only £5 had been paid) or whether (as CITORS, R. Chapman; Lovell, Son, & Pitfield. the holders of the £20 shares on which only £5 per share had been paid contended) the holders of stock ought to receive in the first instance £15 for each £20 of stock which they held (so as to place them on an equality with the holders of the shares), and the residue of the purchase-money should then be divided rateably amongst all the holders of stock and shares on the footing that five shares of £20 were equivalent to £100 stock. There was no provision by statute or by agreement as to the mode of division. Kekewich, J., held that the purchase-mcney ought to be divided among the holders of stock and shares in proportion to the amounts contributed by them respectively to the capital of the company-priated by Bartle Goldsmid, a stockbroker, under these circumstances. in other words, that each holder of £20 stock ought to receive four times as much as the holder of a £20 share.

THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) affirmed the decision, being of opinion that the equitable mode of division was in proportion to the amounts of the contributions by means of which the property which was purchased had been created.-COUNSEL, Rigby, Q.C.; R. S. Wright and C. A. Reeve; Sir H. Davey, Q.C., Barber, Q.C., and Ingle Joyce. SOLICITORS, Trinders; Hollams, Son, & Coward.

SYMONDS v. SYMONDS-C. A. No. 2, 29th June.
APPEAL FROM ORDER MADE BY JUDGE IN CHAMBERS-CERTIFICATE BY
JUDGE THAT HE DESIRES NO FURTHER ARGUMENT-JUDICATURE ACT,
1873, s. 50.

This was an application for leave to set down an appeal from an order
made by Chitty, J., in chambers, without any certificate from him that he
had heard the case fully argued, and did not desire to hear any further
argument. He had declined to give the certificate when application was
made to him for it, and had said that the applicant must move in court to
discharge the order. It was urged that the question (which was whether
the action should be tried with a jury) had been, in fact, fully argued in
chambers, and that the result would be only to inflict unnecessary costs on
the applicant if he was compelled to move in court to discharge the order.
Reliance was placed on Re Elsom (6 Ch. D. 346) as shewing that, under
such circumstances, the Court of Appeal would allow the appeal to be
heard without the certificate.

THE COURT OF APPEAL (COTTON and FRY, L.JJ.) refused the application. They said that in Re Elsom it was laid down that the Court of Appeal would dispense with the certificate of the judge if they were satisfied by other means that the case had been fully argued before him. In the present case they were not satisfied that Chitty, J., did not desire to hear further argument.-COUNSEL, Oswald. SOLICITOR, T. Lamartine Yates.

BANKES v. SMALL-C. A. No. 2, 17th June.

Vendor and PURCHASER-COVENANT FOR FURTHER ASSURANCE-CONVEY
ANCE OF BASE FEE BY TENANT IN TAIL IN REMAINDER-COVENANT TO EXE-

CUTE DISENTAILING DEED-SUBSEQUENT DEATH OF TENANT FOR LIFE
SPECIFIC PERFORMANCE-3 & 4 WILL. 4, c. 74, s. 47.

MAGNUS v. THE QUEENSLAND NATIONAL BANK-Kay, J., 25th

June.

RE-TRANSFER PY BANK TO NOMINEE OF ONE OF THEM-RE-INVESTMENT BANK-LOAN ON SECURITY OF TRANSFER OF STOCK BY JOINT HOLDERSOF PROCEEDS IN HIS SOLE NAME-BANK'S LIABILITY FOR LOSS OF FUND. The object of this action was to make the defendant bank liable for the value of £7,828 railway debenture stock, which had been misapproHe was in the habit The stock was vested in Goldsmid and two other persons as trustees upon certain trusts, Goldsmid being the acting trustee. of suggesting and carrying out changes of investments, and early in 1882 he proposed to his co-trustees to sell this stock and re-invest the proceeds, with the result that they executed a deed of transfer of the stock to two transferees for a consideration of 5s. This transfer, together with the certificate of the stock, was deposited by Goldsmid with the bank with whom he dealt, as part security for a large advance to him for his private purposes, the transferees' names being trustees for the bank, who understood that Goldsmid's authority was, not to sell to the bank, but only to mortgage. When the advance was repaid the bank did not re-transfer to communicating with the other two, caused the stock to be transferred to the three transferors, but by the direction of Goldsmid, and without a purchaser from Goldsmid, and handed him the certificate. Goldsmid thus received the purchase-money for the stock, which he invested in the His co-trustees purchase in his own name of the other stock which he had suggested to his co-trustees. This stock he afterwards sold and appropriated to his own use, and then became bankrupt and absconded. thereupon brought this action against the bank to make them account for the value of the stock.

But that could

KAY, J., held that the bank was liable for the value of the stock at the time when they transferred it to the purchaser from Goldsmid. The transfer by the trustees conferred, at most, an authority to sell to the bank. But the bank did not buy, and the sale to the actual purchaser was entirely without the authority of the co-trustees of Goldsmid. The bank was bound to have re-transferred the stock to the three transferors. It was argued that the bank's breach of duty was not the proximate cause of the less, for that Goldsmid had re-invested the proceeds of sale, and, although in his own name only, that the trustees had intended a sale of the stock, and might have claimed the re-investments. only have been as against Goldsmid. The proceeds of sale had never been properly invested or secured to the trust, and this was owing to the breach of duty by the bank. No doubt the co-trustees ought to have been vigilant to see that the re-investment was properly made, but no negligence on their part had in any way caused the loss. The immediate cause was the dishonesty of Goldsmid in selling the stock without liable for the value of the stock.-COUNSEL, Sir H. Davey, Q.C.; Ince, authority, and in this act the bank concurred. They were, therefore, Q.C., and G. Henderson; Rigby, & C., and Farwell; Renshaw, Q.C., and Ingle Joyce. SOLICITORS, Futvoye, Field, & Baker; Stretton, Hilliard, Dale, & Newman; Norton, Rose, Norton, & Co.

OAKEY & SONS v. DALTON-Chitty, J., 18th June.

This action was brought for the specific performance of a covenant entered into by the defendant in a conveyance to the plaintiff, that he and his mortgagee (who joined in the deed) and every person having or claiming any estate, right, title, or interest in or to the premises conveyed, or any of them, through or in trust for them, or either of them, would at all times, at the cost of the defendants, his heirs or assigns, "execute every such disentailing and other assurance and do every such thing for TRADE-MARK-INFRINGEMENT-SURVIVOR-RIGHT OF EXECUTORS TO CONthe further or more perfectly assuring all or any of the said premises to the use of the" plaintiff, his heirs or assigns, as should be reasonably required. The defendant was formerly tenant in tail in remainder of the property, his father being tenant for life and protector of the settlement.

TINUE ACTION-INJUNCTION-TRADE-MARKS ACT, 1875, ss. 2, 4.
In this case the plaintiff had instituted an action against the defendant
for infringement of a trade-mark registered by the plaintiff under the
Trade-Marks Act of 1875, claiming an injunction, account, and damages.

The plaintiff having died, the action was continued by his executors, but the defendant raised the point of law that the action was extinguished by the plaintiff's death, being an action grounded on a tort, and, therefore, within the maxim actio personalis, &c. He also contended that the executors could not sue for an injunction until they had caused themselves to be registered as owners of the trade-mark. The executors stated that it had been held, even in the time of George II., that the right to a trademark passed to personal representatives: Giblett v. Read (9 Mod. 459); Sebastian on Trade-Marks, 2nd ed., p. 96. CHITTY, J., said that he was of opinion that the cause of action continued to the executors, because the estate which they had received from their testator was alleged to have suffered by the wrongful acts of the defendant. The executors, therefore, were entitled to enforce compensation. That being so, it was not necessary to decide the question as to the executors' right to sue for an injunction.-COUNSEL, Romer, Q.C., and Willis Bund; Aston, Q.C., and Bardswell. SOLICITORS, Paddison, Son, & Co.; Horne & Birkett, for Thos. Chorlton, Manchester.

FOLI v. DEVONSHIRE CLUB-Chitty, J., 20th June. INJUNCTION-OBSTRUCTION OF VIEW-METROPOLIS BUILDING ACT, 1855, s. 26, R. 5-METROPOLIS MANAGEMENT ACT, 1882, s. 13. In this case the plaintiff sought an interim injunction restraining the defendants from erecting a wooden stand in such a way as to obstruct the plaintiff's view of the Jubilee procession. The plaintiff submitted that under rule 5 of the Metropolis Building Act, 1855, s. 26, the defendants had no right to construct any projection so as to intercept the line of view of owners or occupiers of adjacent houses. The defendants had obtained from the Metropolitan Board of Works a licence under the Metropolis Management Act, 1882, s. 13, authorizing the erection.

CHITTY, J., said that it was well established that an injunction would not go to an amenity of view. The rule relied upon by the plaintiff was made by the board for its own guidance and was not an enactment binding on all persons. Moreover, by section 13 of the Act of 1882 the board were intrusted with the power of granting licences, presumably because it was contemplated that in doing so the board would consider the interests of all parties. He declined the injunction, but costs would be costs in the action.-COUNSEL, Birrell; Byrne.

Re GREGSON, CHRISTISON v. BOLAM.-North, J., 25th June. MORTGAGOR AND MORTGAGEE-POLICY OF INSURANCE-SURPLUS PROCEEDSSET-OFF AGAINST UNSECURED DEBT OF DECEASED MORTGAGOR.

The question in this case was whether the mortgagees of a policy of insurance on the life of the mortgagor were entitled after his death to apply the surplus proceeds of the policy, beyond the amount due upon their mortgage, to the payment of an unsecured debt due to them from his estate. In 1847 the mortgagor, in consideration of a sum of £28,000 lent to him by an insurance company, granted to trustees for the company an annuity of £1,790 for the term of ninety-nine years, if he should so long live, the annuity being made payable quarterly. The mortgagor covenanted to pay the annuity, and charged it upon his life estate in certain real estate. The annuity was futher collaterally secured by a warrant of attorney to enter up judgment against the mortgagor for £56,000, under which judgment was entered up, but, inasmuch as the judgment was never registered in compliance with 23 & 24 Vict. c. 38, it became ineffectual. In 1881 the mortgagor borrowed another sum of £4,000 from the same insurance company, and to secure it he mortgaged to their trustees a policy of insurance for £5,000 on his own life, which he had effected with another insurance company. The mortgage deed contained an absolute assignment of the policy to the trustees, subject to a proviso for redemption on payment of £4,000 and interest, in which case the mortgagees were to re-assign the policy to the mortgagor, his executors, administrators, or assigns. There was a power for the mortgagees to sell the policy, and, after retaining out of the proceeds of sale the amount which should be due to them on the security, they were to pay the surplus (if any) to the mortgagor, his executors, administrators, or assigns. There was no express provision for the case of the death of the mortgagor, and the receipt of the policy-moneys by the mortgagees. The mortgagor died in September, 1885, insolvent, and this action was brought for the administration of his real and personal estate. The power of sale had not been exercised, and the mortgage debt of £4,000 was still due. Two quarterly instalments of the annuity of £1,790, and an apportioned part of a third instalment, were also due, and, the mortgagor's life estate having come to an end, those instalments constituted an unsecured debt. The trustees of the insurance company received the £5,000 payable under the policy, and, after satisfying what was due to their company under the mortgage, a surplus of £812 remained in their hands, and they claimed to retain this surplus in part satisfaction of the unpaid arrears of the annuity, which amounted to £1,099. By arrangement the question whether the trustees were entitled to do this was raised between them and the mortgagor's executor by means of a summons in the administration action. NORTH, J., held that there was no such right of retainer. He said that the claim of the trustees was to hold the surplus of the moneys as security for a debt the security for which had ceased to exist. It was admitted that there could be no consolidation of mortgages, there being, in point of fact, only one mortgage in existence. Ex parte Williams (16 Ch. D. 117) was an authority for that, and it also shewed that the unsecured debt could not be tacked to the secured debt. The claim of the trustees had been based on three grounds: (1) It was urged that they were in possession of the money, and that melior est conditio possidentis. They, no doubt, had the money, but they clearly held it to the use of the executor, and it was a fallacy to say that a man who had money in his

hands to the use of another who owed him a debt, was in any better position because he had the money in his hands, unless he had a legal right of retainer. (2) The claim was based on "natural justice." That might be a good argument to address to the Legislature, but a judge could only deal with the law of the land. But his lordship agreed with what Jessel, M.R., said in Talbot v. Frere (9 Ch. D. at p. 571): "I should have thought equity and natural justice were exactly the other way. There can be no natural justice in allowing one creditor of a testator, simply because he happens to have a mortgage, to retain the balance in favour of himself to the prejudice of the other crediters, thus virtually giving himself another mortgage. If a man has a mortgage on a dead man's property, and he realizes the property and pays off the mortgage debt and has a surplus, surely, according to natural justice, the surplus ought to belong to the dead man's estate, to be divided among the creditors. He is only a bare trustee of the surplus." (3) The third ground was a legal one-viz., that the trustees had a right of set-off. The right of set-off must depend either upon agreement or upon statute. At common law there was no right of set-off as between two persons each of whom had a right of action against the other. A tender of the balance by the person who owed the larger sum would not be a legal tender. There was in the present case no agreement for a set-off, and it was clear from decided cases that there could be no statutory right of set off of a debt due by a testator in his lifetime, for which the executor was never personally liable, against a debt in respect of which the testator had no right of action in his lifetime. If the power of sale had been exercised by the mortgagees during the testator's lifetime, and they had received more than sufficient to satisfy their mortgage debt, and the testator had claimed the surplus, unquestionably there might have been a right of set-off against arrears of the annuity due from him. Rees v. Watis (11 Ex. 410); Lambarde v. Older (17 Beav. 542); Newell v. The National Provincial Bank of Englund (1 C. P. D.496); and Hallett v. Hallett (13 Ch. D. 232) were clear authorities that the defendant to an action by an executor (suing as such) for a debt becoming due after the testator's death could not set off a debt due to him from the testator The first was in his lifetime. But the trustees relied on three cases. Spalding v. Thompson (26 Beav. 637), but the decision of Lord Romilly, M.R., in that case was based on grounds which entirely distinguished it from the present case. The next case was Re Haselfoot's Estate (L. R. 13 Eq. 327), the facts of which were very similar to those of the present case. Lord Romilly, M.R, there said that he thought Spalding v. Thompson was precisely in point, and that it had not been reversed or doubted; that he thought his decision there right, and that he must be bound by it. North, J., said that he had already pointed out that Spalding v. Thompson was based on an entirely different state of facts. But the ground of Lord Romilly's decision in Re Haselfoot's Estate was that he was bound by Spalding v. Thompson. He went on to give reasons for his decision, but it was clear that the report could not be relied on, for some passages in the judgment were quite unintelligble. But Lord Romilly did not treat it as a question of set-off. The third case, which was the only one, so far as his lordship was aware, in which Re Haselfoot's Estate had been followed, was Ex parte National Bank (14 Eq. 507). That case was not really any authority, for the point was not argued, and though Malins, V.C., said (p. 516): "It seems to me, on this general principle, that if A. creates a mortgage in favour of B., and, the mortgage being realized, he has the balance in his hands, natural justice would seem to point out that he would be entitled to retain the surplus and apply it in payment of a general debt due to him," that was a mere obiter dictum upon a point which had not been argued, and which was not necessary to the decision of the case, and too much weight must not be attributed to it. These three cases did not furnish authority for the present case. But the decision of Jessel, M.R., in Talbot v. Frere (9 Ch. D. 568) was precisely in point. It was immaterial in the present case whether the insurance company were or were not trustees for the mortgagor, for they had clearly no claim under their security which had been satisfied. They held the surplus moneys to the use of the mortgagor's executor, and, there being no right of set-off, the executor's claim to be paid these moneys was well founded.-COUNSEL, Cozens-Hardy, Q.C., and Warrington; Napier Higgins, Q.C., and W. C. Druce. SOLICITORS, Crossman, Crossman, & Prichard; Burrows & Barnes.

Re RICHARDS, SHENSTONE v. BROCK-North, J., 28th June. VOLUNTARY GIFT-COMPLETION OF GIFT-CREATION OF TRUST-Delivery OF PROMISSORY NOTE ON CONDITION.

The question in this case was whether a testatrix had made an effectual voluntary gift of a promissory note signed by herself, or had constituted a valid trust of it for the intended donee. By her will, made in 1873, the testatrix gave a legacy of £150 to E., who was in her employment as housekeeper. In 1877 the testatrix consulted C., her solicitor, whom she had appointed one of her executors, as to further benefiting E. beyond what she had given her by her will. Ultimately, the testatrix handed to C. a promissory note for £200, signed by herself, and made payable on demand to E., telling C. not to mention the note to anyone but E., but to retain it in his possession until the death of the testatrix, and then to give it to E. "if she should remain in the service of the testatrix until her death." C. retained the promissory note until after the death of the testatrix, who gave him no further direction about it. E. continued in the service of the testatrix until her death. She had been informed of the deposit of the note with C., and she stated that the testatrix had promised to make a provision for her in addition to what she had done by her will, if she would continue in her service until her death. The action was brought to administer the estate of the testatrix, and the question was whether E. was entitled to be paid £200 out of the estate by virtue of the note. Her claim was resisted, on the ground that the property in the note had never

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